HR News

Dealing with Workplace Violence

What would you do if a client started to threaten one of your coworkers? Or if you were asked to terminate an employee who has a history of aggressive outbursts? Or if you were worried about an employee working alone late at night in a ‘bad’ part of town?

While there is no legal requirement to have a workplace violence prevention program, assessing the potential for workplace violence is an essential part of the requirement to “furnish employment and a place of employment that is safe and healthful for the employees therein” (Cal. Labor Code § 6400). Assessing your unique risks is also one of the best ways to prevent and, in worse cases, respond to, instances of workplace violence.
Cal/OSHA suggests that there are three main types of workplace violence:

• Type I: The perpetrator has no legitimate business relationship to the workplace and usually enters the affected workplace to commit a robbery or other crime. Businesses where employees have face-to-face contact with clients or customers, work late at night, or work alone are at a higher risk of this type of workplace violence.
• Type II: The perpetrator is the recipient of a service provided by the affected workplace or victim. The assailant could be a current or former client, patient, customer, or passenger. This type of violence often impacts health care or social service providers, teachers, sales personnel, or other professionals.
• Type III: The perpetrator has some employment-related involvement with the affected workplace. This type of violence is committed by a current or former employee or by an employee’s spouse or lover, relative, friend, or some other person who has a dispute with an employee. This type of workplace violence is far less common than Type I or Type II violence.

How you ultimately prevent workplace violence will depend on which risk factors you face, but one of the best practices employers can take is to establish a zero-tolerance policy towards workplace violence that covers not only employees, but clients, vendors, and any other visitors to your workplace. If you haven’t done so, your next step should be to conduct an initial assessment to identify factors that contribute to your risk for workplace violence, and make plans to mitigate those risks and respond to potential threats.
Sierra HR Partners is available to provide workplace violence prevention training. We can also assist you in assessing your risk of workplace violence and taking steps to mitigate it.

When Are My New Employees Officially On the Clock?

In an effort to make a new employee’s first day of work as productive as possible, many companies schedule an earlier date for New Hire Orientation (NHO) or onboarding activities such as completing tax forms, reviewing the employee handbook, and covering general training topics. However, problems arise when employers do not consider NHO to be work, and do not pay the new employee properly for the time.

You may be thinking, “The person hasn’t even started work yet. Why should we be expected to pay wages?”
The Fair Labor Standards Act states that when an individual is “suffered or permitted to work,” the time must be paid.

You may still be thinking, “How can filling out new-hire forms be considered ‘work’?”
The Industrial Welfare Commission Wage Orders define hours worked as “the time during which an employee is subject to the control of an employer.”

Therefore, if you instruct a new employee to be at your office for a certain amount of time to begin the NHO process, (s)he is effectively under your control, and is considered to have started work on that date, and entitled to reporting time pay. This activity triggers your responsibility to verify eligibility to work in the United States within three business days, and your responsibility to accurately track and pay for all hours worked.

To minimize confusion and potential compliance errors, we recommend dedicating a substantial portion of the new employee’s first workday to completing all steps of your NHO process. While the day may not result in measurable productivity, it presents an ideal opportunity to talk with the individual about your company’s history, mission and organizational structure, thoroughly review the job description and performance evaluation standards, make introductions to co-workers, cover general safety training, and other activities that will allow your employee to feel welcomed and confident in the new position. These onboarding practices will ensure that the hire date is correctly stated in your records, (s)he is paid correctly for all hours worked, and get the employment relationship started on the right foot.

Time Off For New Fathers?

Every June, we celebrate the fathers in our lives and appreciate that, in general, men are more involved in childcare than previous generations.

However, according to a nationwide study conducted by the Society for Human Resources Management, only 12% of fathers took time away from work to bond with a new baby, compared with 69% of mothers. In many companies, there is confusion on the part of employees and managers alike about the amount of time new dads may, or may not be entitled to take.

Companies with 50 or more employees are covered by the federal Family and Medical Leave Act and the California Family Rights Act, which provide up to 12 weeks of protected leave for the purposes of baby bonding (among other qualifying events). Employers in this category should have well-established procedures for determining employees’ eligibility for leave and accurately administering the time off.

Time-off decisions can be more difficult for smaller employers. Friends, relatives, and California’s Paid Family Leave program may contribute to misconceptions that everyone has the right to time off when a new baby arrives. And while California’s Pregnancy Disability Leave Act provides women with up to 4 months of protected leave when disabled by pregnancy or childbirth, there is no baby-bonding provision for new fathers.

The Paid Family Leave program provides partial income replacement when an employee takes an employer-approved leave of absence, but does not create the entitlement to take time off. An employer with fewer than 50 employees may provide a discretionary leave of absence to a male employee during this time, but there is no legal obligation to do so.

Employers who choose to provide discretionary leaves for new fathers should take the following items into consideration:

• While the leave may be granted on an individual basis, managers should aim for consistency among staff members, minimizing confusion and potential morale problems.
• Company policy may determine whether the employee will be limited to using accrued vacation/PTO, or whether some or all of the leave may be unpaid.
• For lengthy periods of time-off, consider implications to group health plan eligibility and arrange for payment of the employee’s portion of monthly premiums.
• Set clear expectations for return to work, and establish that the company may request the employee return earlier than planned to meet business needs.

It can be challenging to balance your company’s desire to provide a family-friendly workplace with ever-changing business demands. For assistance in tackling any family or medical leave concern, please contact Sierra HR Partners.

State Mandated Paid Sick Leave (AB 1522) Effective July 1, 2015

Touted as the “Healthy Workplaces, Healthy Families Act of 2014,” the State of California has mandated paid sick leave starting July 1, 2015. By law, an eligible employee accrues paid sick leave rights at the rate of one hour for every 30 hours worked. Not all employees are eligible for this benefit. For example, this law carved out exemptions for employees covered by certain collective bargaining agreements, and those who provide MediCal in-home supportive services.

By our calculation, if an employee works 40 hours per week, then he or she can accrue 69.3 hours of paid sick time off per year. But the law also states that an employer is not obligated to allow an employee to accrue more than 48 hours, or six days, of paid sick leave, provided the employee’s rights are not otherwise limited. In addition, an employer may limit an employee’s use of paid sick days to 24 hours in each year of employment.

An exempt employee is deemed to work a 40-hour schedule, unless his/her schedule is less than 40 hours per week. The law does not differentiate between overtime and regular hours for non-exempt employees. Conceivably, workers earn paid sick time on all hours worked, creating an extra administrative task in tracking accrual of paid sick time benefits.

If utilizing the accrual method, rather than front-loading PSL, unused sick leave carries over to the following year of employment. If the employment relationship is severed, but the employee is rehired within one year of the date of separation, the employee is entitled to use any accrued but unused sick days upon rehire.

Employers will be required to display a new poster detailing information about paid sick leave. Moreover, the ‘Notice to Employees’ has been amended to include a notice regarding paid sick leave rights.

Records regarding sick leave accrued and used must be kept for three years. And if paid sick leave days were unlawfully withheld, the employer is penalized at least $250 with an administrative penalty not to exceed $4,000. Liquidated damages can also be imposed against an employer who withholds paid sick leave benefits.

This new law requires employers to make significant changes to their sick leave policies. For those clients who use Sierra HR Partners or FLC for their handbooks, we provide the information necessary to make the required changes during our “Year in Review” held in December. We will also provide a model sick leave policy.

Disability and Accommodation: California’s Fair Employment and Housing Act

According to the U.S. Census Bureau Americans with Disabilities 2010 Report, there are 56.7M people living with a disability in the United States, or nearly 1 in 5 Americans. With such a large number, it is likely that your workplace encounters applicants and employees with some form of a disability.

Employer Responsibilities

If you employ five or more employees then you are considered a covered employer under the FEHA, which means that you cannot discriminate or harass an applicant or employee for an actual or perceived disability. It also requires that you reasonably accommodate unless you can show that to do so would cause an undue hardship. Reasonable accommodation requires a timely, good faith, individualized interactive process between you and the employee, applicant or the individual’s representative. This process involves exploring options for allowing the applicant or employee to perform the essential functions of the job.

Sample Prohibited Employment Inquiries:

• Medical or psychological examination or questions
• Asking about mental or physical disability or medical conditions
• Probing into the nature and severity of a mental or physical disability or medical condition
• Questions related to workers’ compensation claims
• Attendance questions that lead to disclosure of medical leaves

• Modified work schedule
• Job restructuring
• Providing a leave of absence or time off for medical treatment
• Adjusting or relocating a work area
• Allowing employee to work from home

Applicant/employee protections under FEHA are separate and in addition to the rights and responsibilities that employees may be entitled to under the California Family Rights Act, Family Medical Leave Act and Workers’ Compensation laws.

Sierra HR Partners is available to answer any questions.